OFFICIAL OPINION 98-2

[Oscar Knight]

OFFICIAL OPINION 98-2


To: Commissioner January 8, 1998
Georgia Department of Human Resources



Re: A plea of nolo contendere to a misdemeanor crime of domestic violence as defined under the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., does not result in the imposition of a civil disability so as to prohibit the right to ship, transport, possess, or receive firearms under the Act.


This letter is in response to an inquiry from your Department regarding the effect of a plea of nolo contendere to a misdemeanor crime of domestic violence. For the reasons outlined below, a plea of nolo contendere to a misdemeanor crime of domestic violence does not result in the imposition of a civil disability so as to take away the right of an individual to possess a firearm under the Gun Control Act of 1968.

The Gun Control Act of 1968 (the Act) provides that a person convicted of a “misdemeanor crime of domestic violence” may not “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922. By the terms of the Act, the application of a nolo contendere plea to the Act is determined “in accordance with the law of the jurisdiction where the proceedings were held.” 18 U.S.C. § 921(20).

Georgia’s law regarding nolo contendere pleas is found at O.C.G.A. § 17-7-95. That Code Section provides in pertinent part:

Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose; and the plea shall not be deemed a plea of guilty for the purpose of effecting any civil disqualification of the defendant to hold public office, to vote, to serve upon any jury, or any other civil disqualification imposed upon a person convicted of any offense under the laws of this state. The plea shall be deemed and held to put the defendant in jeopardy within the meaning of Article I, Section I, Paragraph XVIII of the Constitution of this state after sentence has been imposed.

Because the plea of nolo contendere “in Georgia [is] entirely of statutory origin,” Nelson v. State, 87 Ga. App. 644, 646 (1953), Smith v. State, 76 Ga. App. 847 (1948), the language of the statute itself is the primary source of its effect. There are also other Georgia statutes as well as Georgia cases which assist in defining the ultimate impact of pleading nolo contendere, since the leading caveat in the statute makes clear that the benefits of pleading nolo contendere are available “except as otherwise provided by law.” O.C.G.A. § 17-7-95(c).

“Entering a plea of nolo contendere is a privilege rather than a right.” Fortson v. Hopper, 242 Ga. 81, 82 (1978). The plea is an assertion that the defendant does not desire to contest the truth of charges against him. Id. So it is “not a plea of not guilty, nor is it a plea of guilty. Rather it is approximately midway between the two extremes.” Id. It is a plea “designed to cover situations where the side effects of a plea of guilty, in addition to the penalties provided by law, would be too harsh.” Id. at 83 (quoting Wright v. State, 75 Ga. App. 764 (1947)).

A plea of nolo contendere “differs from a plea of guilty only in that it cannot be used against the defendant in any other court or proceedings as an admission of guilt or otherwise, or for any other purpose, and it is not a plea of guilty for the purpose of effecting civil disqualifications.” Winsor Forest v. Rocker, 121 Ga. App. 773 (1970) (citation omitted). The plea cannot be used in another case. Id. However, a sentence based on the plea of nolo contendere is a conviction, but does not constitute guilt in any case, even a civil case involving the same act. Id. at 773-74.

It has been held that a plea of nolo contendere can be used for impeachment by using it as evidence of a felony or crime of morale turpitude in a civil case, Tilley v. Page, 181 Ga. App. 98, 100 (1986), but not in a criminal case. State v. Rocco, 259 Ga. 463 (1989). In addition, however, a witness may be subject to impeachment by evidence of a nolo contendere plea even in a criminal case to disprove the testimony of a material fact. Id. at 467.

There are, however, statutory exceptions which specifically provide that a nolo contendere plea is considered as a conviction. These include, but are not limited to, O.C.G.A. § 40-5-63 (suspension of driver’s license can be based upon a plea of nolo contendere); O.C.G.A. § 43-11-47(a)(4)(A) (dentist’s license may be revoked based upon a plea of nolo contendere); O.C.G.A. § 43-26-11(1) (nurse’s license may be revoked based upon a plea of nolo contendere); O.C.G.A. § 43-40-15(b)(1), (2) (real estate broker and salesperson license may be disciplined based upon a plea of nolo contendere); O.C.G.A. § 35-8-7.1(3), (4) (peace officer may be disciplined based on a plea of nolo contendere); O.C.G.A. § 43-34-37(a)(4) (physician may be disciplined based on a plea of nolo contendere); O.C.G.A. § 16-11-129(b)(5)(B)(ii) (a plea of nolo contendere to certain offenses would disqualify a person from getting a license to carry a pistol or revolver). Of particular significance to your inquiry, is that the General Assembly provided in O.C.G.A. § 16-11-129(b)(5)(B)(ii), that a plea of nolo contendere in drug related cases results in the inability to get a pistol license. This demonstrates that the General Assembly did not intend to effect a disqualification for other nolo contendere pleas not specified in the statute.

While there are many Attorney General opinions regarding pleas of nolo contendere, in Op. Att’y Gen. 1964, pp. 566-568, the Attorney General opined, in a case similar to the issue posed in your inquiry, that “a plea of nolo contendere may not be raised in another proceeding as a basis for any civil disqualification” and therefore “the Board of Regents of the University System of Georgia, is not legally prohibited from appointing to a teaching position . . .” based upon a plea of nolo contendere to a constitutionally designated crime prohibiting those persons from holding “any office, or appointment of honor or trust in this State.”

In that opinion, the Attorney General relied on the policy discussion outlined by the court in Wright v. State, 75 Ga. App. 764 (1947), wherein the court ascertained that the intent of the General Assembly in establishing a nolo contendere plea was to remedy statutorily the harshness of a guilty plea in certain instances. The court there found that “[f]ollowing the lead of other jurisdictions, including our Federal system of jurisprudence, provision was made for a plea of guilty that in the discretion of the court could be employed by defendants thus guilty of crime, which would authorize the court to impose the punishment fixed by statute as to the offense charged, without also carrying with it the objectionable and infamous provisions of law as herein outlined. As in other jurisdictions, this plea was named nolo contendere.” Id. at 766-67. The opinion also relies upon Nelson v. State, 87 Ga. App. 644 (1953), where at that time a plea of nolo contendere meant that the Department of Public Safety was without the power and authority to revoke the defendant’s driver’s license based on a plea of nolo contendere.

It appears that the nolo contendere plea is designed to protect against the consequences of a civil disability being imposed except in the specific case in which the plea is entered. The exceptions are like those previously cited statutory instances where the nolo contendere plea is specifically included as a conviction.

No exception exists in Georgia law so as to make a nolo contendere plea to a misdemeanor crime of domestic violence a “conviction” for purposes of imposing any automatic civil disability. Therefore, there is no basis provided by law to use such a plea of nolo contendere to effect any disability, including the right to possess firearms.

In conclusion, a plea of nolo contendere in a misdemeanor crime of domestic violence does not result in a civil disability so as to take away the right to possess a firearm under the Gun Control Act of 1968, 18 U.S.C. § 921 et seq.

Prepared by:


CAROL A. CALLAWAY
Senior Assistant Attorney General


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See 1991 Op. Att’y Gen. 91-10; 1990 Op. Att’y Gen. 90-16; 1983 Op. Att’y Gen. 83-33; 1982 Op. Att’y Gen. 82-33; 1982 Op. Att’y Gen. 82-64; 1980 Op. Att’y Gen. 80-96; 1978 Op. Att’y Gen. 78-37; 1977 Op. Att’y Gen. 77-54; 1992 Op. Att’y Gen. U92-10; 1991 Op. Att’y Gen. U91-11; 1989 Op. Att’y Gen. U89-21; 1986 Op. Att’y Gen. U86-20; 1981 Op. Att’y Gen. U81-12.

As noted earlier in this opinion, a nolo contendere plea is now considered a conviction for purposes of license suspension. O.C.G.A. § 40-5-63.

There is a full discussion of pleas of nolo contendere in a law review article entitled The Effect in Georgia of a Plea of Nolo Contendere Entered in a Georgia Court, George Weaver, 13 Ga. L. Rev. 723 (1979).

[Oscar Knight]

Frank Lautenberg - Democrat

The Domestic Violence Offender Gun Ban (1996) was an amendment to the Omnibus Consolidated Appropriations Act of 1997 which was passed by the 104th US Congress in the Fall of 1996. Officially known as 'Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence' -- 18 U.S.C. § 922(g)(9)'[1], 'Public Law 104-208'[2] and is often referred to as the Lautenberg Amendment after its sponsor, Frank Lautenberg.

The Lautenberg Act conflicts with State Laws that are in effect that do not impose a statute under federal law, and or state laws preventing persons from owning a firearm, ammunition, or possessing of such items.

In Example: A person convicted of Domestic Violene in Texas is charged with and convicted of a Misdemeanor Charge Class A. A person convicted of Domestic Violence in very few other states Domestic Violence is charged as a felony.

In all states a violation of a protective order, as well as any other act of Domestic Violence while a protective order is in place is Considered a Felony and the Charges that were initially filed will automatically become a felony charge of Domestic Violence.

The Lautenberg Amendment and or Act does not specify to whether or not a Felony Conviction of Domestic Violence whether by plea, or by Deferred Adjudication or a Misdemeanor Charge of Domestic Violence should fall under the act.

The Lautenberg Amendment excludes all persons convicted of any type of Domestic Violence, or the Subject of a Magistrates Protective order from owning or possessing any type of Firearm, Ammunition, and or other types of weapons that involve a projectile device.

www.gopetition.com/petitions/amend-lautenberg-act-amendment.html

The nation's police forces are up in arms over a new federal gun control law that could strip thousands of them of their guns and jobs. Most police organizations have enthusiastically supported every gun control scheme President Clinton has put forward. Few Americans realized that such legislation almost always contained an exemption for the policemen themselves regarding their official duties. But poetic justice may finally have arrived. Unfortunately, its arrival also heralds the decimation of constitutional rights of a million or more other Americans.

Last September 28, as part of a massive appropriations bill, Congress passed the so-called Lautenberg Act, which greatly increases the number of Americans prohibited by federal law from owning firearms. For the first time, thanks to an amendment by Georgia's Rep. Bob Barr, law-enforcement officials are not exempt from the nation's gun control laws.

The Lautenberg Act prohibits anyone from owning a gun or possessing any ammunition who has ever been convicted of a misdemeanor involving the use or attempted use of physical force or the threatened use of a deadly weapon against a spouse, child, or intimate partner. (People with any felony conviction have been prohibited from owning guns since 1968.) Any person with such a misdemeanor on his record who is found in possession of a gun or even of a single bullet can face a $250,000 fine and 10 years in prison — longer than the average convicted murderer serves in this country.

Gerald Arenberg, executive director of the National Association of Chiefs of Police, observed that the act "has thrown the whole world into confusion for cops." Victor Kappeler, director of the Criminal Justice Graduate Program at Eastern Kentucky University, estimated that if accurate reporting of all such police domestic violence occurred, and if all such assaults were fully prosecuted, 10% of the nation's law-enforcement officials (70,000 individuals) could be found guilty and thus banned from possessing a firearm under the new law.

www.fff.org/freedom/0597d.asp